On the occasion of his first anniversary on the Supreme Court, one particular refrain stands out: Justice Gorsuch, we are told, doesn’t fit in. He asks too many questions, his writing style is a bit too colorful and colloquial, and he talks too much about the Constitution.
The concern (really criticism) is that he is trying too hard and doing all the wrong things.
Set aside for a moment the fact that similar concerns could have been (and often were) raised about any number of former Justices — Antonin Scalia, in particular, comes to mind. Set aside how premature it is to assess a justice’s legacy or place on the Supreme Court after a single year.
{mosads}Put aside, too, the unfortunate, if inevitable, coloring of politics in these evaluations. The common thread running through these judicial hot takes is that the authors do not know the man.
I do. I was a law clerk to Justice Gorsuch when he was a judge on the Tenth Circuit Court of Appeals in Denver —before any political prognosticator predicted the election of Donald Trump or the nomination of Neil Gorsuch. I was also a clerk at the Supreme Court, to Justice Anthony Kennedy, during Justice Gorsuch’s inaugural term.
I cannot reveal confidential information about my clerkships or time at the court. But I can say with conviction that Judge Gorsuch and Justice Gorsuch are one and the same.
The context (and level of scrutiny) may have changed, but the newest justice is applying the same principles and displaying the same qualities that he has for over a decade on the bench. They have served him well so far, and they will continue to do so.
One-man hot bench? No question. Any appellate panel on which Judge Gorsuch sat was bound to be a lively one. But he never asked questions for their own sake. The purpose was to clarify uncertain facts or arguments, extract concessions that might help to resolve the case and to cut to the heart of the legal question at issue.
Unlike some judges, Judge Gorsuch was not one to take a lawyerly evasion for an answer. He was persistent. I often found myself sitting in the courtroom, saying a quiet prayer of thanks that I was one of his law clerks and not the advocate behind the podium.
Memorable writing style? Long before he took up residence at 1 First Street, Judge Gorsuch was regarded as one of the most gifted writers on the federal bench. His style is distinctive, hard to mimic even for the most fastidious clerk — though it was something we all aspired to.
Opinions went through many drafts, sometimes dozens of them. His audience was not a group of judges or lawyers but the parties to the case. He wrote to breathe life into the law, to make it understandable and accessible even to laypersons, so they would know they had been heard and understood why they won or lost.
Fixation on the Constitution? It is part of the same judicial philosophy Justice Gorsuch has always espoused. If I had a quarter for every time Judge Gorsuch asked me what 18th-century legal scholars had written about, say, searches and seizures, I could have afforded quite a few more visits to the Tenth Circuit vending machines.
The same goes for Justice Gorsuch’s insistence on the careful parsing of statutory text. The “bench binders” we clerks prepared always included a few of the most pertinent cases. But every clerk knew to include all of the relevant statutes and regulations.
Case discussions would turn quickly to the legal text. (I wasn’t the only clerk who wished, on more than a few occasions, that I was more proficient at diagramming sentences.)
These long-standing commitments do not, as some might think, lend themselves to predictably conservative outcomes (as that term is politically defined).
As anyone who paid attention to Judge Gorsuch’s tenure on the Tenth Circuit can tell you, his opinions frequently took positions opposed to other Republican-appointed judges, particularly in cases involving the rights and liberties of the most vulnerable in our society — from immigrants to the most unsympathetic of criminal defendants.
Can it be that a justice who asks a lot of questions, who takes risks with the English language most of us would not dare to take and who is vocally committed to the text and original meaning of the Constitution just does not fit in? Not a chance.
All of those things could be said about Justice Scalia, who was also famous for his close relationships with his longtime colleagues at the court.
Don’t just take my word for it. Ask Justice Gorsuch’s former colleagues on the Tenth Circuit, with whom he shared a deep respect and genuine personal bond. That bond was the source of collegiality he cherished. He spoke about it during the confirmation process, but he spoke about it even more in chambers with us clerks.
That collegiality was something he sought to nurture, because that is the kind of man he is: The kind of man who will invite law clerks with nowhere to go to join his family for Thanksgiving. The kind of man who will spend an hour-and-a-half giving a small child a personal tour of the courthouse. The kind of man who will call to make sure you’re okay after the death of a mutual friend.
That is the Justice Gorsuch I know. I’m confident he’s going to fit in just fine.
Alex Harris is an associate at the law firm Bartlit Beck Herman Palenchar & Scott in Denver. He was a judicial law clerk for Supreme Court Justice Anthony M. Kennedy and for then-Judge Neil M. Gorsuch at the U.S. Court of Appeals for the Tenth Circuit. In 2017, Forbes Magazine listed Harris in its “30 under 30 for Law & Policy.”